The Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021 (the Act) has passed in the Victorian Parliament. The Act will commence on a date to be proclaimed by the Minister for Energy, Environment and Climate Change, which is expected sometime in 2022.
The Act is modelled on the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment Reform Act 2019 (FPRC Act), which came into effect in July 2019, and provides the same presumptive rights to cancer compensation for occupational and surge forest firefighters as those currently available for career and volunteer firefighters.
What does presumptive rights mean?
When the Act comes into effect, forest firefighters who satisfy the criteria for presumptive rights will have an entitlement for compensation under Victoria’s Workers’ Compensation Scheme (the Scheme).
This means if a firefighter who satisfies the relevant criteria is diagnosed with a cancer listed in the Act, it is assumed that the cancer is directly attributable to their service as a firefighter.
The presumption applies unless there is proof to show that the cancer was not caused by firefighting.
Who qualifies as a forest firefighter?
The Act defines forest firefighters as being either occupational forest firefighters or surge forest firefighters.
An occupational forest firefighter is someone employed in a role where forest firefighting is a substantial portion of the role.
A surge forest fighter is someone employed in a non-firefighting role who elects to take on fire and emergency management responsibilities as part of their department or agency’s surge response.
The presumption will apply to forest firefighters engaged by the Department of Environment, Land, Water and Planning (DELWP), Melbourne Water, Parks Victoria, VicForests and other relevant Victorian Government agencies.
What type of cancers are covered by the presumption
The table below lists 12 specified types of cancer and the qualifying period associated with each cancer.
What is the eligibility criteria?
Occupational forest firefighters and surge forest firefighters must satisfy an eligibility test based on length of service.
When the scheme comes into effect, it will apply to:
- forest firefighters with a cancer diagnoses on or after 1 June 2016
- currently serving forest firefighters
- former forest firefighters within 10 years of ceasing employment
A partial year of service is counted as a full year of service to recognise seasonal workers. Previous service as a volunteer and career firefighter and equivalent interstate service counts towards the qualifying period.
Who decides eligibility?
All forest firefighter claims for presumptive rights will require an expert opinion from an Advisory Committee (the Committee) established under the legislation. The Committee will include members with forest firefighting expertise. The Committee will provide non-binding advice to WorkSafe as to whether a forest firefighter:
- meets the eligibility requirements to receive the presumption
- has attended an 'exceptional exposure event' and is eligible to receive special consideration
The functions and membership of the Committee will be established through regulations.
What is an 'exceptional exposure event'?
Where a forest firefighter does not meet the relevant qualifying period, they can apply for special consideration to assess whether they have attended an exceptional exposure event in order to receive the presumption. The Act does not define what an exceptional exposure event is; however, the Committee will consider:
- the nature of the event
- whether there are any relevant findings from a coroner, court proceedings or official inquiry regarding an event known to have exposed firefighters to carcinogens
- relevant records, employer data or local knowledge
- any other matters prescribed by the regulations
How do you make a claim?
When the Act comes into effect, a claim for presumptive rights compensation can be made through the existing WorkSafe claims process. A claim can be submitted through the employer using the Worker's Injury Claim Form.
The Advisory Committee is required to provide its expert opinion to WorkSafe within 10 days from receiving the application and 60 days where an application for special consideration is made.
Claims cannot be lodged until the Act comes into effect in 2022. More information on how to make a claim will be made available then.
Need more help?
We understand this may be a difficult or distressing time and we don't want to make things harder for you. If you have any questions about this process, please contact our Advisory Service on 1800 136 089 or your Agent.